Public Records FAQ 8

How should a records custodian determine whether a request for a public record should be granted or denied?

Wisconsin strongly favors the public's
right to access public records. Accordingly, assuming the request is
sufficiently specific (see Wis. Stat. sec. 19.35(1)(h)) and involves a
public record (see Wis. Stat. sec. 19.32(2)), a copy of the record must
be provided to any person who requests it unless: (1) a state or federal
law exempts the record from disclosure; (2) Wisconsin case law exempts
the type of record in question from disclosure; or (3) the harm to the
public interest from disclosure outweighs the public interest in
inspection. Therefore, when a municipal clerk or other custodian is
faced with a sufficiently specific request for a public record s/he
should first determine whether a statutory exception or a court decision
limits access to the requested record.

Some examples of records that are exempt
by state statute from disclosure under the public records law include
patient health care records, computer programs, trade secrets, personal
property tax returns, and real estate transfer returns. In addition,
court decisions have determined that the public records law disclosure
requirements do not apply to documents in the file of a district
attorney that relate to the prosecution of a case or to the names of the
ultimate purchasers of municipal bonds issued by the municipality. If
it is uncertain whether a statute or court decision applies to a
particular record or what procedures should be followed, the custodian
should consult with the city or village attorney.

In a typical records request, access to
the requested record is not limited or prohibited by any statute or
court decision. Ordinarily, the custodian must engage in the
above-referenced balancing test. This requires the custodian to weigh
the competing interests involved and determine whether disclosure would
result in harm to the public interest that outweighs the recognized
public interest in allowing access to public records. In performing the
balancing test, exemptions to the open meetings law under sec. 19.85(1),
Stats., are specifically declared to indicate public policy but are not
dispositive and they do not relieve the custodian of the duty to engage
in the balancing test. Accordingly, merely referencing an open meetings
law exemption or asserting, in general terms, that disclosure would be
contrary to the public interest is insufficient evidence that the
custodian engaged in the balancing test. Instead, while a custodian is
not required to provide a detailed analysis of a record and why public
policy directs that a record be withheld, s/he must state a specific
public policy reason if the request is to be denied. If a custodian
cannot articulate a specific public policy reason for denying access to a
record, then the record must be released.

Finally, if a record contains information
that should be released and information that should not be released,
the custodian must release the information that can be disclosed and
delete the information that should not. In addition, before releasing a
public-employee personnel record that implicates a reputational or
privacy interest, the custodian must give the employee notice of a
decision to release the record and an opportunity to obtain a court
order restraining the proposed release.